Appeal of PAUL DASHEFSKY from action of the Board of Education of the Massapequa Union Free School District and board members Arlene Martin, Christine Lupetin Perrino, Richard Krebs, Marianne Fisher and Thomas Caltabiano regarding the acceptance of gifts.

Decision No. 15,486

November 10, 2006

Ingerman Smith, L.L.P., attorneys for respondents, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the attendance by individual members of the Board of Education of the Massapequa Union Free School District (the “board”) at a social event sponsored by the board’s attorneys.  The appeal must be dismissed.

In November 2005, the individually named board members (collectively referred to with the board as “respondents”) attended a client reception sponsored by the board’s law firm (which is not the firm representing respondents in this appeal).  Petitioner claims that the fair market value of the reception was between $200 and $300 per person in violation of district policy and General Municipal Law §805-a.  Petitioner requests that I find a violation of law and district policy, order respondents to cease and desist from accepting any prohibited gifts, direct respondents to publicly disclose all gifts accepted during their term of service, and order respondents to reimburse the district for the fair market value of any gifts accepted in violation of law or district policy.

Respondents claim that this appeal is untimely.  They also allege that petitioner has failed to meet his burden of proving that the actual cost of the reception exceeded $75 per person.  Respondents also maintain that even assuming the reception exceeded $75 per person, such cost is only improper if it is intended to induce future conduct or reward past action.  Respondents contend that the prohibition is inapplicable since no such intent has been demonstrated.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The event in question took place in November 2005.  The appeal was commenced on February 17, 2006.  Petitioner claims that respondents first disclosed the board members’ attendance at the reception at a board meeting on January 26, 2006.  However, there is no allegation or evidence that respondents attempted to conceal such attendance or that this information was otherwise unavailable prior to January 26.  Accordingly, on the record before me, I find that petitioner offers insufficient reason for his delay in commencing this appeal.  Therefore, the appeal must be dismissed as untimely.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Petitioner speculates that the cost of the reception was between $200 and $300 per person, but there is nothing in the record to confirm this allegation.  Accordingly, petitioner has failed to establish that the $75 threshold of the statute or policy was met.

     Although the appeal must be dismissed for the foregoing reasons, I am compelled to remind respondents of the gift prohibitions in the General Municipal Law and their obligations thereunder.  General Municipal Law §805-a(1) states:

No municipal officer or employee shall:  a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.[1]

Respondents argue that the reception was not intended as either an inducement or a reward and therefore was not a prohibited gift.  Instead they argue that the reception was meant to strengthen an already existing attorney-client relationship.  Although this alleged purpose is laudable, the test under the statute is whether it may “reasonably be inferred” that a gift is intended to influence a municipal officer or employee, whether it “could reasonably be expected to influence” such person, or whether it is “intended as a reward for any official action.”  A violation of §805-a(1) occurs not only where there is an intent to influence or reward an official but also in instances where there is an appearance that a gift will influence the official (Op Atty Gen No. 89-48).  Under this standard, it may “reasonably be inferred” that the reception was intended to influence, or “could reasonably be expected to influence” the board’s decision to continue its business relationship with the law firm or to reward the board for past actions, including the retention of the firm’s services.

     Public Officers Law §73(5), and the opinions issued thereunder are also instructive, since that statute contains language virtually identical to §805-a(1).[2]  In 1997, the State Ethics Commission (“Commission”) issued an extensive advisory opinion on the gift prohibitions in §73(5) to guide both potential donors and recipients in the Commission’s interpretation of the provisions of law applicable to gifts (NY St. Ethics Commn Advisory Op 94-16).  In that opinion, the Commission concluded that, with limited exceptions, gifts over $75 from certain sources can perse be inferred to be intended to influence or reward official action.  These sources (referred to as “disqualified sources”) include an entity that “does business with, seeks to contract with or has contracts with” the agency with which the officer or employee is employed or affiliated (NY St. Ethics Commn Advisory Op 94-16).  The advisory opinion gives additional information and examples regarding valuation and permissible versus impermissible gifts.  While not controlling on school board members, respondents would be well advised to review Advisory Opinion 94-16 for additional guidance in these matters.

As public officials, board members must avoid even the appearance of impropriety (Op Atty Gen No. 89-48).  I thus encourage the individual board members to be scrupulous in their adherence to the gift prohibitions contained in General Municipal Law §805-a(1)and board policy.

THE APPEAL IS DISMISSED.

END OF FILE

[1] The district’s policy embodies similar language.

[2] Public Officers Law §73(5) (while not applicable to school board members) imposes similar restrictions on the receipt of gifts by state officers and employees.